Freedom of speech is a hot topic in community associations
Words of Conveyance
By: John Colby Cowherd
28 July 2017
Freedom of speech is a hot topic in community associations. Some of
these First Amendment disputes concern the freedom of a property owner
to display flags, signs or symbols on their property in the face of
board opposition.
Conflict between association leadership and members over free speech
also spreads into cyberspace. One such case recently made its way up to
Florida’s Fifth District Court of Appeals. On July 21, 2017, the
appellate judges reversed part of the trial court’s ruling in favor of
the association. Howard Adam Fox had a bad relationship with certain
directors, managers and other residents of The Hamptons at MetroWest
Condominium Association. Several lessons here for anyone who
communicates about associations on the internet.
The July 21, 2017 appeals opinion does not describe the social media
communications and blog posts that gave rise to the dispute. I imagine
that they consisted of personal attacks that may have been alleged to
contain slanderous material. The details are left out of the opinion,
probably with a sensitivity towards the persons discussed by Mr. Fox
online.
In general, I do not like the spreading of false, slanderous statements
in personal online attacks. To the extent that Fox had legitimate
grievances about goings on at the Hamptons at MetroWest, the character
of his criticisms seems to have eclipsed any merit. There are usually
better ways of solving problems than angrily venting them in online
forums.
The board filed a complaint seeking a court order prohibiting Mr. Fox
from, “engaging in a continuous course of conduct designed and carried
out for purposes of harassing, intimidating, and threatening other
residents, the Association, and its representatives.” The association
alleged Mr. Fox violated the governing documents of the condominium by
his blog posts and social media activity.
The court granted an ex parte injunction prohibiting the alleged
wrongful conduct. This means that the judge initially considering the
case did not wait for Mr. Fox to make a response to the lawsuit.
Later, Mr. Fox and the board reached a written settlement wherein Fox
agreed to cease certain activities. The final order in the court case
incorporated the terms of the settlement. Making terms of the
settlement a part of the final order means that the association does
not have to start its lawsuit all over again to enforce the deal. They
just need to bring a motion for contempt if Fox violates the order.
Howard Fox represented himself and did not have an attorney in the
trial court and appellate litigation.
Soon thereafter, the association filed a motion for contempt, alleging
that Fox violated the settlement and final order. In the contempt
proceeding, the trial court went further than simply enforcing the
terms of the settlement. The judge forbade Fox from posting or
circulating anything online about any residents, directors, managers,
employees, contractors or anyone else at the Hamptons.
The judge required him to take down all current posts. If someone
asked him on social media about his community, and he wanted to
respond, he would have to call them on the telephone.
Fox appealed this contempt order on the grounds that it violated his
First Amendment rights under the U.S. Constitution. The Fifth District
Court of Appeals agreed. The trial court’s ruling was what is called a
“prior restraint.”
The contempt order did not punish him for past wrongful actions. It
looked permanently into his future. Prior restraints against speech are
presumptively unconstitutional. Temporary restraining orders and
injunctions are “classic examples” of prior restraints.
The appellate court focused on the public nature of the type of speech
the lower court order forbade. This makes sense. While an association
is private, it is a community nonetheless. There is no real conceptual
difference between online communications and other types of speech.
Matters of political, religious or public concern do not lose their
protected status because the content is insulting, outrageous or
emotionally distressing.
In a condominium, many matters of community concern could easily be
characterized as political, religious or public. Federal, state or
local rulemaking may impact the common business within the association.
While community associations are “private clubs,” the things that
members communicate about are mostly public in the same sense as town
or city ward communities. To paraphrase this opinion, “hate speech” is
protected by the constitution, unless certain very limited exceptions
apply, such as obscenity, defamation, fraud, incitement to violence,
true threats, etc.
This Florida appellate court found that the trial court violated Fox’s
First Amendment rights when it ordered the “prior restraint” against
him making any posting of any kind online related to his community.
On appeal, the court preserved the rulings finding contempt for
violation of the settlement agreement. So, Fox must still comply with
the terms of the settlement. The case will go back down for further
proceedings unless there is additional appellate litigation.
Nerd-out further on the constitutional law issues in this case by
reading the useful Volokh Conspiracy blog post on the Washington Post’s
website.
The appeals court did not find that any covenants, bylaws, settlements,
or other association agreements violated the First Amendment. This
opinion does not mean that people cannot waive their rights in entering
a private contractual relationship with each other.
Usually, only “state actors” can be found to violate the Constitution.
An association is not a “state actor” because it is not really
governmental. Here, the “state actor” in the constitutional violation
was the trial-level court and not the association.
What difference does it make? Ultimately, the courts, review the
validity of board actions, determine property rights and enforce
covenants. The association board requested relief that apparently
lacked support in the covenants or the settlement agreement. To protect
their rights, owners must understand when their board is doing
something or asking for relief outside of its contractual authority.
There is one final point that the court opinion and the Volokh
Conspiracy blog do not discuss which I want my readers to appreciate.
Owners of properties in HOAs do not simply have a right to communicate with each other and the board. They have an obligation.
The covenants, bylaws and state statutes provide for the board to be
elected by the members. Members can amend governing documents by
obtaining a requisite of community support. The non-director membership
is supposed to be an essential part of the governance of the
association.
If the members and directors do not have an effective means to
communicate with each other, then the community cannot function
properly. Community associations can have thousands of members and
residents. The may cover the acreage like that of a town or small city.
The internet, in both password protected and public sites provides a
convenient way for information and messages to be shared.
Limits on an owner’s ability to communicate with her board or other
parties to the “contract” prejudices her rights under the governing
documents. I do not like covenants or bylaws that limit an owner’s
ability to obtain information or communicate concerns within the
governance of the association.
Donie Vanitzian recently published a column in the LA Times entitled, “Freedom of Speech Doesn’t End Once You Enter a Homeowner Association.”
She discusses proposed California legislation to enshrine owners’
rights to assemble and communicate with each other about community
concerns. Ms. Vanitzian makes an important point that because speech
may be deemed “political” should not justify management suppression.
Having rights to participate in the meetings of one’s HOA without the
right to talk about what is going on is like owning land deprived of
any right of way or easement to the highway. While the new Florida
opinion does not discuss this point, it is consistent with the basic
values of the First Amendment.
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